dolphin-feeding cruises are probably harmless to the 
dolphins, but are valuable to people. The temporary 
restraining order was extended pending a hearing on 
the merits of the case. 
The Federal defendants filed a motion for summary 
judgment on 5 June 1991, arguing, among other 
things, that marine mammal feeding constitutes a form 
of harassment, is likely to alter marine mammal 
behavior, and poses significant risks to the animals. 
Plaintiffs filed a cross-motion for summary judgment 
on 18 June 1991. A hearing on the matter was held 
in Corpus Christi, Texas, on 19 December 1991. 
The court issued its decision on 1 October 1992, 
ruling in favor of the plaintiffs and enjoining enforce- 
ment of the marine mammal feeding regulation as it 
pertains to dolphins. The court found that the regula- 
tory definition of taking adopted by the Service was 
inconsistent with the statutory definition of that term. 
The court determined that “Congress intended a 
taking to be a reduction to possession or an annoyance 
sufficiently disturbing to cause flight from concern for 
self-preservation.” In the court’s view, “the term 
‘harass’ would not in its ordinary sense include the 
mere feeding of animals in the wild.” As such, the 
Service’s regulation was determined to be at odds with 
the statutory definition of taking, or at least with the 
Congressional intent behind that definition. 
The court further determined that the administra- 
tive record of the Service’s rulemaking did not 
adequately support the conclusion that wild dolphins 
would be adversely affected if fed by humans. The 
court found that the record contained no scientific 
studies to justify the Service’s conclusion. Rather, the 
Service “chose to support its regulation with theories 
of possible harm to dolphins based on evidence that is 
merely anecdotal.” 
The court ruled that even if it were valid to include 
feeding wild marine mammals in the regulatory defi- 
nition of taking, the Service had acted arbitrarily in 
denying the plaintiff's public display permit appli- 
cation. The court found that the Service’s policy 
against issuing public display permits for activities 
conducted in natural settings was in fact an agency 
tule, which had not been lawfully promulgated. The 
court also suggested that the policy, even if adopted 
191 
Chapter XI — Permits for Marine Mammals 
through rulemaking, would be inconsistent with the 
Act’s provisions. Inasmuch as Congress has recog- 
nized the value of marine mammal public displays, the 
court opined that the Service “has a duty to explore 
all reasonable avenues of display.” Noting the 
rationale behind the public display permit provision, 
the court stated that “[t]he educational and recreational 
value of feeding operations in the dolphins’ natural 
Setting is at least presumptively as good as for [dis- 
plays of captive dolphins in] marine parks....” 
On 22 December 1992 the Federal defendants filed 
a notice of appeal. No further action was taken by 
the parties in 1992. 
The feeding of wild dolphins also was addressed by 
Congress in the National Oceanic and Atmospheric 
Administration Authorization Act of 1992 (Pub. L. 
102-567), which was enacted on 29 October 1992. 
Section 306 of that Act directs the Secretary of 
Commerce, in consultation with the National Acade- 
my of Sciences and the Marine Mammal Commission, 
to design and conduct a study in the eastern Gulf of 
Mexico on the effects of feeding wild dolphins. The 
study is to be designed to detect any behavioral or 
dietary modification resulting from feeding and to 
identify the effects of any such modifications on the 
health and well-being of the dolphins. The Secretary 
is required to submit a report on the results of the 
study to the House Committee on Merchant Marine 
and Fisheries and the Senate Committee on Com- 
merce, Science, and Transportation by 29 April 1994. 
Other Litigation 
The Marine Mammal Protection Act allows both 
permit applicants and those opposed to issuance of a 
permit to seek judicial review of the terms and condi- 
tions of any permit issued under section 104 of the 
Act or of the denial of such a permit. In recent years, 
permit-related litigation has increased. In addition to 
Mirage Resorts v. Franklin and Strong v. United 
States, the swim-with-the-dolphin and the dolphin- 
feeding cases discussed above, the following cases 
were pending at the end of 1992: 
